People v. Speed

• Decision Date: 04 February 2020
• Docket Number: No. 343184,343184
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amber R. SPEED, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

331 Mich.App. 328

952 N.W.2d 550

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Amber R. SPEED, Defendant-Appellant.

No. 343184

Court of Appeals of Michigan.

Submitted November 7, 2019, at Lansing.

Decided February 4, 2020, at 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Daniel Ping, Assistant Attorney General, for the people.

John Zevalking for defendant.

Before: Borrello, P.J., and K. F. Kelly and Servitto, JJ.

Per Curiam.

Defendant appeals as of right her jury-trial conviction of conducting a criminal enterprise, MCL 750.159i(1). The jury found her not guilty of one count of recruiting a minor for sexually abusive activity, MCL 750.462e,¹ and one count of inducing a person to engage in prostitution, MCL 750.455,² with respect to one victim, and could not reach a verdict on the same charges with respect to another victim. The trial court sentenced her to 5 to 20 years’ imprisonment. We affirm.

Defendant was accused of recruiting minors into prostitution and forcing these minors to engage in sexual activities in exchange for money and drugs for defendant. She was initially charged with nine counts of various related offenses, including human trafficking, that allegedly occurred on or about August 2009 through February 2013. The prosecution dismissed four counts prior to trial, and the jury found defendant not guilty of two counts but was unable to reach a verdict on two other counts. The jury ultimately found defendant guilty of one count of conducting a criminal enterprise.

On appeal, defendant asserts that there was insufficient evidence to convict her of the crime of conducting a criminal enterprise. However, defendant's specific claim of error is that she could not be found guilty of this crime because the jury did not find that she committed the predicate alleged acts of racketeering. Thus, defendant's claim is not that the evidence presented was factually lacking, but instead it is a legal claim that she could not be convicted under MCL 750.159i when she was not convicted of any predicate offenses under MCL 750.159g.³

To the extent that defendant sets forth a claim challenging the sufficiency of the evidence, this Court reviews de novo a defendant's challenge to the sufficiency of the evidence to support his or her conviction. People v. Harverson , 291 Mich. App. 171, 177, 804 N.W.2d 757 (2010). "In examining the sufficiency of the evidence, ‘this Court reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt.’ " People v. Reese , 491 Mich. 127, 139, 815 N.W.2d 85 (2012) (citation omitted).

Defendant did not raise before the trial court the issue of whether she could be convicted under MCL 750.159i without being convicted of predicate offenses. This issue is thus unpreserved. Unpreserved issues are reviewed for plain error affecting substantial rights. People v. Carines , 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999). An issue of statutory interpretation is reviewed de novo. People v. Babcock , 469 Mich. 247, 253, 666 N.W.2d 231 (2003). "In interpreting statutes, we start by examining the plain language of the statute ... [and] if the statutory language is plain and unambiguous, then no judicial interpretation is necessary or permitted. ..." People v. Mattoon , 271 Mich. App. 275, 278, 721 N.W.2d 269 (2006). Further, we give effect to every word, phrase, and clause to the extent possible. Id.

MCL 750.159i provides in relevant part:

(1) A person employed by, or associated with, an enterprise shall not knowingly conduct or participate in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity.

A "pattern of racketeering activity" means not less than two incidents of racketeering to which all of the following characteristics apply:

(i ) The incidents have the same or a substantially similar purpose, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated acts.

(ii ) The incidents amount to or pose a threat of continued criminal activity.

(iii ) At least 1 of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the last of the incidents occurred within 10 years after the commission of any prior incident, excluding any period of imprisonment served by a person engaging in the racketeering activity. [ MCL 750.159f(c).]

The term "racketeering," in turn, is defined as

committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit an offense for financial gain, involving any of the following:

* * *

(ii) A violation of ... [ MCL 750.452, MCL 750.455, MCL 750.457, MCL 750.458, or MCL 750.459 ], concerning prostitution.

(jj) A violation of [ MCL 750.462a et seq. ] concerning human trafficking. [ MCL 750.159g, as amended by 2014 PA 300, effective January 1, 2015.]

In order to find defendant guilty of racketeering, then, the jury needed to find beyond a reasonable doubt that

(1) an enterprise existed, (2) defendant was employed by or associated with the enterprise, (3) defendant knowingly conducted or participated, directly or indirectly, in the affairs of the enterprise, (4) through a pattern of racketeering activity that consisted of the commission of at least two racketeering offenses that (a) had the same or substantially similar purpose, result, participant, victim, or method of commission, or were otherwise interrelated by distinguishing characteristics and are not isolated acts, (b) amounted to or posed a threat of continued criminal activity, and (c) were committed for financial gain. [ People v. Martin , 271 Mich. App. 280, 321, 721 N.W.2d 815 (2006).]

One of the elements of conducting a criminal enterprise is "through a pattern of racketeering activity that consisted of the commission of at least two racketeering offenses ." Id . (emphasis added). Additionally, a plain reading of MCL 750.159i, MCL 750.159f(c), and MCL 750.159g indicates that a jury must find that the defendant at least twice committed, attempted to commit, conspired to commit, or aided or abetted, solicited, coerced, or intimidated a person to commit one of the offenses listed in order to find the defendant guilty. However, the statute is silent on whether a defendant must have been convicted of at least two racketeering offenses.

Although there is no caselaw directly on point, Martin provides guidance on this issue. In Martin , several appeals were consolidated to address multiple defendants’ convictions and sentences arising out of their participation in the operation of an adult entertainment establishment. Martin , 271 Mich. App. at 285, 721 N.W.2d 815. Two of the defendants were charged with and convicted of a single count of racketeering in violation of MCL 750.159i(1). Id. at 286, 721 N.W.2d 815. At the time of their joint trial, two predicate offenses were listed on the informations. Id. at 287, 290, 721 N.W.2d 815. The Court stated that in order to prove the racketeering charge, the prosecution had to prove that the defendants had committed "both predicate offenses." Id. at 290, 721 N.W.2d 815. "[D]efendants could not have committed racketeering without committing the predicate offenses and the jury could not convict defendants of racketeering without making findings regarding factual elements that were not part of the predicate offenses." Id. Defendant Billy Martin argued that "the prosecution failed to present sufficient evidence to prove the elements of the racketeering offense and the underlying predicate acts " and, accordingly, the trial court should have issued a directed verdict in his favor. Id. at 313-314, 721 N.W.2d 815 (emphasis added). This Court disagreed, holding that "the essential elements of racketeering and the predicate offenses were proven beyond a reasonable doubt," id. at 327, 721 N.W.2d 815, despite the fact that Martin was never convicted of any predicate offenses. This Court concluded that there was sufficient evidence to show "that defendant knowingly conducted or participated in the affairs of [the adult entertainment establishment] directly or indirectly through a pattern of racketeering activity, which included committing, attempting to commit, conspiring to commit or aiding or abetting the violation of MCL 750.452 and MCL 750.457." Id. at 323-324, 721 N.W.2d 815. In other words, despite Martin's having been convicted only of conducting a criminal enterprise and not any predicate offenses, this Court, when presented with a sufficiency-of-the-evidence argument, looked at the two predicate offenses alleged at trial and held that the evidence supported a determination that Martin had committed, attempted to commit, conspired to commit, or aided or abetted the commission of these two predicate offenses.

Though the defendants in Martin admittedly did not present the same argument that defendant makes on appeal here, it is noteworthy that this Court took no issue with the fact that Martin had not been convicted of any predicate offenses and that we analyzed whether there was sufficient evidence to show that defendant had engaged in the predicate offenses, notwithstanding the lack of charges or convictions for those predicate offenses. Therefore, Martin suggests that conducting a criminal enterprise does not require convictions of, but rather merely evidence to prove , at least two predicate offenses.

In People v. Schrauben , 314 Mich. App. 181, 886 N.W.2d 173 (2016), on the other hand, we affirmed the trial court's dismissal of the defendant's conviction of conducting a criminal enterprise after it determined that his convictions of embezzlement, which supported the conviction for conducting a criminal enterprise, could not be proven beyond a reasonable doubt. In that case, the...